Best Best & Krieger News Feed

2016 CEQA Essentials Workshops

02 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the Association of Environmental Professionals’ 2016 CEQA Essentials Workshops. These workshops provide a basic understanding of the fundamentals of the California Environmental Quality Act and the State Guidelines, and include intermediate-level practice pointers and case studies. They feature a curriculum developed specifically for people involved in the environmental review process, including consultants, regulators, applicants, and industry professionals, and will benefit those new to the field as well as mid-level practicing professionals.

Topics will include:

Understanding the Statute and Guidelines
Determining the Appropriate Document – Exemptions, Negative Declarations, EIRs
Responsibilities – Trustee Agencies and the Role of the Consultant
Adequacy of Analysis and Mitigation
Findings
Notices

BB&K Speakers:

Sarah Owsowitz
Date: Wednesday, Nov. 2
Time: 8:30 a.m. - 4:30 p.m.
Location: Preservation Park
1233 Preservation Park Way
Oakland, CA 94612

Jennifer Lynch
Date: Friday, Nov. 4
Time: 8:30 a.m. - 4:30 p.m.
Location: Whittier Law School - Room 9
3333 Harbor Blvd.
Costa Mesa, CA 92626

Charity Schiller
Date: Tuesday, Nov. 8
Time: 8:30 a.m. - 4:30 p.m.
Location: Hyatt Place Riverside - Downtown
3500 Market St.
Riverside, CA 92501

For more information or to register through AEP, click here.

2016 APA California Conference

22 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 American Planning Association California Conference in Pasadena, Calif.

BB&K Speakers

Thomas Rice: "CEQA and Noticing: Best Practices for Complying with CEQA, Brown Act, and Other Public Noticing Requirements"
Saturday, Oct. 22
1 - 2:30 p.m.

Jennifer Lynch: “10 Crucial Things Planning School Didn’t Teach You”
Saturday, Oct. 22
1:15 - 2:30 p.m.

Jennifer Lynch: “Quick Hits: Demographics, Housing, CEQA and More”
Monday, Oct. 24
9:45 - 11:15 a.m.

When
Saturday, Oct. 22 - Tuesday, Oct. 25

Where
Pasadena Convention Center
300 E. Green St.
Pasadena, CA 91101

For more information or to register, click here.

25th Annual Environmental Law Conference at Yosemite

20 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the State Bar of California Environmental Law Section’s 2016 Environmental Law Conference in Yosemite, Calif.

BB&K Speakers:

Alisha Winterswyk
"Southern Sierra Tree Die-Off"
Aerial surveys by the United States Forest Service show more than 66 million dead trees in Sierra Nevada forests. Learn about drought and bark beetle impacts on forest vegetation as well as forest management approaches designed to mitigate these ongoing impacts.
Saturday, Oct. 22
1 - 5 p.m.

Kelly Salt
“Water Rights Reforms — Are Changes Needed to our Water Rights and Pricing System?”
California’s historic drought has generated debate about how water should be allocated as well as new proposals for reform. In 2015, the Legislature enacted changes beefing up water measurement requirements for surface water diverters, and strengthening the State’s enforcement authority. More expansive water rights reforms have been proposed. Litigation is also ongoing that challenges water rates created to encourage water conservation, which potentially conflict with constitutional and other limitations on rate setting. This panel explores whether major changes to our water rights and water pricing systems are desirable, and if so, what they may be.
Sunday, Oct. 23
11 a.m. - 12:30 p.m.

When
Thursday, Oct. 20 - Sunday, Oct. 23

Where
Tenaya Lodge at Yosemite
1122 Highway 41
Fish Camp, CA 93623

For more information or to register, click here.

California Coastal Act Takes Priority Over Housing Density Laws

11 Oct 2016 00:00:00 -0800

The Second District Court of Appeal recently held that local agencies may be required to grant affordable housing density bonuses unless doing so would violate the Coastal Act, which is designed to ensure that state policies for the coastal zone prevail over local government concerns. While the court recognized the importance of providing affordable housing in California and was careful to note that housing density statutes still apply in the coastal zone, the Coastal Act prevails over such statutes where a project violates its provisions.

In the published opinion Kalnel Gardens, LLC v. City of Los Angeles, the City disapproved a 15-unit residential project in the Venice area allowed to exceed density, height and setback restrictions because it designated two very low income units. The City’s planning department issued various approvals for the project, including a coastal development permit under the California Coastal Act, which governs land use planning for the state’s entire coastal zone. Ultimately, the project was overturned by the planning commission on appeal by neighboring residents because of its incompatibility with aesthetic policies in the Coastal Act rather than density concerns. The City Council denied the developer’s appeal and adopted the commission’s findings.

The developer sued the City for violation of state housing density statutes. The Court of Appeal affirmed the trial court’s determination that such laws are superseded by the Coastal Act. Specifically, it found clear legislative intent in Government Code section 65915 of the Density Bonus Act, which requires a local land use authority to award a density bonus and certain itemized concessions for the setting aside of a certain percentage of housing units for low or very low income residents, to be subordinate to the Coastal Act.

The court further considered Public Resources Code section 30604 of the Coastal Act stating a density bonus granted under the Density Bonus Act, or the Housing Accountability Act in Government Code section 65589.5, may be denied if the local agency issuing a coastal development permit finds it is infeasible to accommodate the project on the site in a manner that is in conformity with the Coastal Act. The Housing Accountability Act prohibits a local agency from rejecting housing developments based on their density without a thorough analysis of the economic, social and environmental effects of the action and findings.

In contrast, the Mello Act, which requires new affordable housing units as part of new developments constructed within the coastal zone unless found infeasible by the local agency under Government Code section 65590, does not state it is superseded by the Coastal Act. The court, however, found an undisputed violation of Coastal Act provisions requiring new development design to protect scenic views and be visually compatible with the character of surrounding areas. Interpreting the Coastal Act in a manner most protective of coastal resources, the court concluded the Mello Act’s affordable housing requirements apply so long as a project is consistent with the Coastal Act’s overall protective provisions.

If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

New Guidance Issued for Analyzing Climate Change in National Environmental Policy Act Documents

15 Aug 2016 00:00:00 -0800

The White House’s Council on Environmental Quality has issued new guidance directing federal agencies to evaluate greenhouse gas emissions and climate change when preparing documents for proposed agency actions under the National Environmental Policy Act. Although CEQ’s guidance document is, as the name indicates, just guidance, it will likely result in changes to the way NEPA documents are drafted and provide ammunition to project opponents if the guidance is not followed.

A key point made in the new guidance document is that federal agencies should quantify GHG emissions when possible, regardless of a proposed action’s size. This emphasis appears to have stemmed from concern that GHG emissions might be overlooked on the basis that climate change occurs on a global scale and a single action makes only a small contribution to global conditions. CEQ’s guidance makes clear that agencies should not limit themselves to calculating a proposed action’s emissions as a percentage of sector, nationwide or global emissions in deciding whether or to what extent to consider climate change impacts under NEPA.

The emphasis on quantifying GHG emissions for all projects is a change from CEQ’s previous draft guidance document, which included a threshold of 25,000 metric tons of CO₂-equivalent emissions before quantification was warranted. The new guidance eliminates this threshold and instead recommends that agencies quantify a proposed agency action’s direct and indirect GHG emissions without “establish[ing] any particular quantity of GHG emissions as ‘significantly’ affecting the quality of the human environment.” Although federal agencies may apply the rule of reason when determining the level of review that is appropriate, CEQ’s guidance recommends that where agencies do not quantify a proposed action’s anticipated GHG emissions “agencies include a qualitative analysis in the NEPA document and explain the basis for determining that quantification is not reasonably available.”

In addition to other directives, CEQ’s guidance document makes clear that NEPA analyses should evaluate not only a proposed action’s impact on climate change, but also the effects of climate change on the proposed action. This approach diverges from environmental review under the California Environmental Quality Act, where documents do not need to consider the effects of the environment on a project, as recently confirmed by the California Supreme Court. Agencies should be mindful of this divergence when preparing joint NEPA/CEQA documents.

CEQ’s new guidance document will impact future agency actions subject to NEPA and potentially even agency actions currently undergoing NEPA review. As a result, agencies and project proponents should work closely with legal counsel to ensure their NEPA documents are consistent with CEQ’s new guidance.

If you have any questions about the new guidance or how it may impact your organization, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your B B&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

The State of Our Autonomy is... Moving Fast, Optimistic and Filled with Regulatory Questions

17 Mar 2016 00:00:00 -0800

Car manufacturers are pressuring lawmakers to develop a federal regulatory framework for a world where automated vehicles are a reality and not just science fiction. This was clear at a packed Senate committee hearing earlier this week titled “Hands Off: The Future of Self-Driving Cars.” While regulatory questions and operational challenges exist, gears are quickly shifting into “drive” at the federal level. These changes mandate that municipalities remain informed and track forthcoming federal legislation and rulemakings concerning the operation of autonomous vehicles on our roadways.

Many witnesses in the Senate Committee on Commerce, Science & Transportation hearing requested that the federal government step in to prevent varying state and local laws and regulations on autonomous vehicle testing and operation. According to testimony from Google, 23 states have introduced 53 pieces of legislation with different approaches and concepts toward regulating autonomous vehicles. Witnesses warned that such a patchwork and inconsistent approach will hinder ongoing U.S. testing and innovation. It also puts the U.S. at risk of falling behind Europe and Japan, where regulations are being relaxed to allow for more comprehensive and real world testing. Moreover, consistency will be necessary to avoid any confusion when traveling across state lines.

There is evidence that the federal government is stepping into the regulatory landscape. The Department of Transportation announced last week that it will hold hearings in Washington, D.C. and California on how to best integrate the safe operation of automated vehicles onto our roads. This announcement was complimented with the release of a report by the National Highway Traffic Safety Administration discussing potential barriers and challenges of trying to fit autonomous vehicle safety regulations into the existing Federal Motor Vehicles Safety Standards.

These standards were developed when automated vehicles were not even a glimmer in the eyes of regulators. While the barriers identified in the report to meeting existing standards were not insurmountable, the report cautions that compliance challenges substantially grow in size when designs move away from traditional vehicles on the road today. For example, if a car is fully automated, why would it need a steering wheel, side view mirrors and traditional seating? An automated car without such standard features does not work with the current FMVSS, which means new safety standards will need to be adopted. Additional issues, such as privacy and cybersecurity, also need to be addressed.

Lawmakers are rightly excited about the potential opportunities that automated vehicles bring. This growing enthusiasm and pressure on federal lawmakers to ensure the U.S. continues to be a leading innovator in automated vehicles sets the stage for federal regulation. Since municipalities may need to support the infrastructure required for automated vehicle operation — and because the implementation of this technology may have significant impacts on budgets and on planning — localities should watch federal regulatory developments closely, and participate as necessary in relevant rulemakings to protect local interests.

If you have questions regarding regulatory developments concerning autonomous technologies, please contact the author of this Legal Alert listed to the right in the Transportation Law practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @bbklaw.

EPA Issues New Regulation Governing Air Quality Standards for Ozone

13 Oct 2015 00:00:00 -0800

The United States Environmental Protection Agency issued a final rule earlier this month strengthening the National Ambient Air Quality Standards for ground-level ozone, changing it from 75 parts per billion to 70 ppb. EPA believes the updated standards will serve to protect the public from adverse health effects associated with long-term ozone exposure, such as asthma.

While the regulatory action may serve to protect public health, it could also prove costly for California’s public agencies. Since 2008, California has spent nearly $3 billion on funding innovative technologies to combat ozone pollution, such as zero-emission trucks and buses and near-zero emission freight equipment. Even with these investments, EPA believes California will likely need to undergo a “transformational change” to meet the updated standards. According to EPA, the State may need to “transition to largely zero or near-zero emission vehicle technologies.”

As a result of this recent rulemaking, the California Air Resources Board will need to submit an Infrastructure State Implementation Plan to EPA. This I-SIP is due in 2018, and will detail the regulatory programs and resources California plans to utilize to implement the new ozone standards. While it is still early in the regulatory process, EPA estimates that a number of California counties will have attainment dates ranging from 2032 to 2037.

For more information or to discuss how these standards may affect your agency or CEQA process, please contact the attorney authors of this legal alert listed to the right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

BB&K Partner Michelle Ouellette Named a Top Woman Lawyer by the Daily Journal

19 May 2015 00:00:00 -0800

RIVERSIDE, Calif. - Best Best & Krieger LLP Partner Michelle Ouellette is among the Daily Journal’s Top 100 Women Lawyers in California. While her recent environmental law accomplishments were considered, the legal newspaper highlighted her work leading the Santa Margarita Water District legal team in overcoming challenges to a water recovery and storage project.

An Orange County Superior Court’s ruling last year rejected six challenges to the environmental review and approvals by SMWD and the County of San Bernardino related to the Cadiz Valley Water Conservation, Recovery and Storage Project. The public-private partnership with Cadiz, Inc. to pump and transmit groundwater secures an annual average of 50,000 acre-feet of water for delivery to SMWD and other water users.

That case is important to me because of the drought in California and the need to provide water to our citizens Ouellette said in an interview with the Daily Journal.

“I rely on a large group of people at BB&K who work so hard and so diligently for our clients,” Ouellette said. “They’re really the success story here — not me.”

For 26 years, Ouellette has practiced in BB&K’s Environmental Law and Natural Resources practice group. She effectively and efficiently helps cities, counties, special districts, developers and other clients in the private sector to navigate the requirements of the California Environmental Quality Act, the National Environmental Policy Act and state and federal endangered species laws.

The Daily Journal editors noted in the special Top Women Lawyers supplement that it’s only been a short time that female lawyers have had the opportunity to reach “legendary” status for their complex and impactful legal work. The women on this list, like Ouellette, they wrote, have achieved that status.

Read more in the Daily Journal (subscription required).

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

BB&K Partner Charity Schiller Honored as a Woman of Distinction

27 Mar 2015 00:00:00 -0800

RIVERSIDE, Calif. - Best Best & Krieger LLP Partner Charity Schiller was among the 20 women honored by Assemblymember Jose Medina with the annual “61st Assembly District Women of Distinction” Award, presented Saturday during a luncheon ceremony. Schiller was lauded for the leadership role she has taken in the legal community with regard to environmental and sustainability issues, as well as her work teaching environmental law at her alma mater, the University of California, Riverside. The Assemblymember also noted Schiller’s involvement with several civic and philanthropic organizations in the City of Riverside, where she lives.

Schiller, 37, assists private companies and public agencies to comply with all aspects of the California Environmental Quality Act, the National Environmental Policy Act and other environmental laws. Schiller’s practice includes not only advising clients regarding the analysis and approval of renewable energy projects, sustainably themed transportation improvements and regional land use plans, but also includes representing clients before trial and appellate courts across California.

Environmental law is rapidly evolving on local, state and national levels, with California at the forefront. Schiller is an emerging leader in environmental law because she has built her practice on a deep understanding of the complex issues, laws and interplay of regulations in this area. With a graduate degree in biochemistry and molecular biology, Schiller puts her education to work by coaching public agencies and private developers on complex strategies to reduce greenhouse gas emissions, meet state-wide transportation sustainability requirements, develop Climate Action Plans to reduce greenhouse gas emissions on a jurisdiction-wide basis, and meet increasingly stringent requirements for site-specific and sustainable development in local communities.

Schiller and the other honorees were recognized in conjunction with Women’s History Month. “I am proud to honor these leading women of the Inland Empire,” Medina said. “They serve as distinguished members of the community and role models and educators for youth in the region.”

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With nearly 200 attorneys, the law firm has nine offices nationwide, including Riverside, Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

BB&K Attorney Testifies to Congressional Subcommittee on Proposed EPA Clean Water Act Rule

16 May 2014 00:00:00 -0800

In response to the Environmental Protection Agency’s recently announced proposed rule related to the Clean Water Act and the definition of “Waters of the United States,” Best Best & Krieger LLP Attorney Andre Monette was asked to testify before a senate subcommittee. The hearing, titled “Solving the Problem of Polluted Transportation Infrastructure Stormwater Runoff,” was conducted on May 13 by the Senate Committee on Environment and Public Works’ Subcommittee on Water and Wildlife. Andre’s written testimony is available in its entirety here.

The hearing is important to local governments and public agencies because the EPA’s proposed rule, if adopted, will greatly expand the jurisdictional reach of the Clean Water Act. While the EPA claims the rule will not broaden coverage of the Clean Water Act, or protect and expand jurisdiction, witnesses in the hearing made it clear that the EPA has a history of overreaching and tying up the limited funds and resources of local governments.

It is true that construction of roads and other infrastructure creates impervious surfaces that contribute to stormwater runoff, but Congress has already created guidelines for the EPA and other federal agencies to abide by. A one-size-fits-all approach, controlled at the federal level, neglects states’ and local governments’ ability to regulate on a case-by-case, site-by-site basis. Andre and other witnesses urged the Subcommittee to consider that management practices need to conform to the unique hydrological variations across the country, which are best administered at the state and local level.

A significant topic at the hearing was municipal stormwater systems, which may be categorized as Waters of the United States if the EPA’s rule is adopted. This would force these systems to adhere to fishing and swimming compliance standards, which Sen. Deb Fischer (R-Nebraska) quickly dismissed as nonsensical.

The environmental impacts of stormwater runoff are significant; however it is in the public interest, both environmentally and economically, to manage and regulate these issues as new infrastructure is planned and constructed — not through retroactive regulations and mandates from the federal government. The Obama Administration’s recent reauthorization of the Federal Surface Transportation Law, appropriating more than $300 billion in transportation and infrastructure funding, will certainly continue to fuel this debate. Witnesses testifying before the Subcommittee reiterated that cooperative federalist regulations will best serve the interests of both the environment and economy of localities across the nation.

Additional Reading:

EPA Issues Proposed Rule Interpreting Jurisdictional Reach of Clean Water Act

Waters of the US: EPA Seeks Input to Clarify Scope of Clean Water Act

For more information on how the proposed EPA rule may impact your agency, please contact one of the attorney authors of this legal alert listed at the right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.